MEMORANDUM DECISION AND ORDER DENYING IN PART AND
GRANTING IN PART MOTION TO DISMISS

David
Nuffer District Judge

Plaintiffs
assert claims for declaratory judgment and injunctive relief
relating to arbitration proceedings pending in Salt Lake
City, Utah and Boston, Massachusetts (respectively, the
“SLC Arbitration” and the “Boston
Arbitration”).[1] Defendants seek dismissal of
Plaintiffs' Complaint arguing (1) subject matter
jurisdiction is lacking or venue is improper based on the
Federal Arbitration Act and the parties' binding
agreements to arbitrate; and (2) jurisdiction should be
declined in favor of a first-filed federal case pending in
the Western District of North Carolina (the “North
Carolina Case”).[2]

A prior
Memorandum Decision resolved Defendant's Motion to
Dismiss as to Plaintiffs' claims concerning the SLC
Arbitration.[3] However, the Motion to Dismiss was stayed
as to Plaintiffs' claims concerning the Boston
Arbitration pending the resolution of a motion to dismiss
filed in the North Carolina Case.[4] The parties were directed to
file a joint status report upon the issuance of a ruling on
the motion to dismiss in the North Carolina
Case.[5]

On
March 5, 2018, the parties filed a Joint Notice indicating
that the motion to dismiss in the North Carolina Case was
granted.[6] The Joint Notice also indicated that
Defendants would not challenge that ruling.[7] Therefore, the
stayed portions of Defendants' Motion to Dismiss are now
ripe for determination.

Because
the North Carolina Case was dismissed, [8] Defendants'
Motion to Dismiss is MOOT as to whether jurisdiction over
Plaintiffs' claims should be declined in favor of the
North Carolina Case. Additionally, because subject matter
jurisdiction exists and venue is proper for Plaintiffs'
claims concerning Michael Ahlin and Trent D'Ambrosio (the
“Individual Plaintiffs”), Defendants' Motion
to Dismiss[9] is DENIED in part. But because issues of
arbitrability are to be decided by the arbitrator in the
Boston Arbitration, Defendants' Motion to
Dismiss[10] is GRANTED in part.

• a consulting agreement entered between Gold American
Mining Corp. and Danzig, Ltd. on February 25, 2013 (the
“Danzig Agreement”);[12]

• an asset purchase agreement entered between Inception
Resources, LLC and Gold American Mining Corp., Inception
Development, Inc., and Brett Bertolami on February 25, 2013
(the “Asset Purchase Agreement”);[13] and

• a debt exchange agreement entered between Gold
American Mining Corp. and Bret Bertolami on February 25, 2013
(the “Debt Exchange Agreement”).[14]

The
Boston Arbitration

On June
12, 2017, Danzig, Ltd. initiated the Boston Arbitration with
the American Arbitration Association
(“AAA”).[15] In the Boston Arbitration, Danzig, Ltd.
alleges claims against Inception Mining, Inc. and the
Individual Plaintiffs for federal securities fraud; North
Carolina securities fraud; breach of contract; unjust
enrichment; common law fraud; breach of fiduciary duty; and
negligent misrepresentation.[16]

Plaintiffs'
Complaint

Plaintiffs
initiated this case on August 22, 2017.[17]
Plaintiffs' second and third causes of action
(respectively “Second Claim” and “Third
Claim”) pertain to the Boston Arbitration, the Danzig
Agreement, the Asset Purchase Agreement, and the Debt
Exchange Agreement.[18] In their Second Claim, Plaintiffs seeks
declaratory judgment that:

• the Individual Plaintiffs are not proper parties to
the Boston Arbitration;

• claims under the Asset Purchase Agreement and the Debt
Exchange Agreement are not properly the subject of the Boston
Arbitration;

• the exclusive dispute resolution forum under the
Danzig Agreement is arbitration; and

• the exclusive dispute resolution forum for claims
under the Asset Purchase Agreement is arbitration in Salt
Lake City, Utah before an arbitrator with five years of
experience in the gold mining industry.[19]

In
their Third Claim, Plaintiffs seek, among other things,
injunctive relief:

• enjoining Defendants Danzig, Ltd. and Brett Bertolami
from asserting claims under the Asset Purchase Agreement in
any court;

• enjoining Defendants Danzig, Ltd. and Brett Bertolami
from asserting claims under the Danzig Agreement in any
court;

• enjoining Defendants from asserting claims under the
Debt Exchange Agreement in any arbitration brought under the
Danzig Agreement or the Asset Purchase Agreement; and

• enjoining Defendants from asserting any claims under
the Danzig Agreement, the Asset Purchase Agreement, or the
Debt Exchange Agreement against the Individual
Plaintiffs.[20]

DISCUSSION

“[A]rbitration
is a matter of contract and a party cannot be required to
submit to arbitration any dispute which he has not agreed so
to submit.”[21] “[A] party who has not agreed to
arbitrate will normally have a right to a court's
decision about the merits of its
dispute[.]”[22] “But, where the party has agreed
to arbitrate, he or she, in effect, has relinquished much of
that right's practical value.”[23] And
“[w]hen a plaintiff's claim is subject to
arbitration, federal courts lack subject matter jurisdiction
to entertain the action.”[24]

Portions
of Plaintiffs' Second Claim and Third Claim seek
declaratory judgment and injunctive relief to determine
whether the Individual Plaintiffs are proper parties to the
Boston Arbitration, and whether Defendants may assert claims
under the Danzig Agreement, the Asset Purchase Agreement, and
the Debt Exchange Agreement against the Individual
Plaintiffs.[25]Defendants argue that subject matter
jurisdiction over these claims is lacking or venue is
improper because they raise issues of arbitrability that
should be decided by the arbitrator in the Boston
Arbitration.[26]

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&ldquo;[W]ho-court
or arbitrator-has the primary authority to decide whether a
party has agreed to arbitrate can make a critical difference
to a party resisting arbitration.&rdquo;[27] This is
because when a party “ask[s] a court to review the
arbitrator's decision . . . the ...

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